Roseberry v. Home Life Ins. Co.
| Decision Date | 31 January 1936 |
| Docket Number | 179-1935 |
| Citation | 183 A. 121,120 Pa.Super. 450 |
| Parties | Roseberry, Appellant, v. Home Life Insurance Company |
| Court | Pennsylvania Superior Court |
Argued October 10, 1935
Appeal by plaintiff, from judgment of M. C., Phila. Co., Sept. T 1933, No. 676, in case of Charles Roseberry v. The Home Life Insurance Co.
Assumpsit. Before Crane, J.
The facts are stated in the opinion of the Superior Court.
Verdict for plaintiff. Judgment entered for defendant n. o. v Plaintiff appealed.
Error assigned was granting of motion for judgment n. o. v.
Affirmed.
Hyman Shane, for appellant.
John P. Connelly, for appellee.
Before Keller, P. J., Baldrige, Stadtfeld, Parker, James and Rhodes, JJ.
The defendant insurance company on May 16, 1927, issued an industrial policy of insurance on the life of Margaret Roseberry, payable to Charles Roseberry, her husband, as beneficiary. The contract of insurance was made in consideration of the delivery of the policy during the lifetime and good health of the insured and "the payment of the weekly premium hereinbefore stated [22 cents] to the Company or to its authorized representative on or before every Monday during the continuance of this contract, until the seventy-fifth birthday of the Insured." Margaret Roseberry died on July 14, 1933, and thereafter the beneficiary delivered to the company a certificate of the Bureau of Vital Statistics showing her death and cause of death. This suit was begun by Charles Roseberry, but thereafter he died and his administrator was substituted as plaintiff. The issue raised by the pleadings and proofs was whether the contract of insurance was terminated before the death of the insured by a failure to pay weekly premiums.
It was alleged in the affidavit of defense that the policy was "forfeited by her on account of the nonpayment of premium due on March 13, 1933," and that thereafter the policy was cancelled. On the trial of the cause the plaintiff offered, in addition to certain averments in the statement of claim, including payment of the first premium, not denied in the affidavit of defense, the policy of insurance and rested. The defendant called its actuary who testified that the books of the company showed no payments after March 6, 1933, and that the policy therefore lapsed on March 13, 1933, no premiums having been paid after that date. In addition, the actuary stated that the surrender value of the policy at the date of forfeiture was sufficient to carry it until May 15, 1933, at which time all liability of the company ceased. The latter statement was a mere mathematical calculation which could be made by anyone from an examination of the policy. The plaintiff offered no testimony in rebuttal.
The trial judge charged the jury that the burden was on the defendant to establish the fact that the premiums were not paid and submitted that question to the jury which arbitrarily rendered a verdict for the amount of the policy less certain loans which had been made against it. Subsequently the court entered judgment n. o. v. for the defendant. In entering this judgment the lower court said: The court also intimated that it would have granted a new trial if it had not entered judgment for the defendant. We are of the opinion that the conclusion reached was correct.
The appellant contends that the production of the policy of life insurance complete in all its terms and duly executed and in possession of the beneficiary at the time of her death, together with the admission of the company that the first premium was paid, made out a prima facie case; that the burden was then on the insurer to affirmatively prove its defense of nonpayment; that the company's proofs were by oral testimony; and that the question was therefore for the jury and their verdict should not be disturbed. (Nanty-Glo Boro. v. Amer. Surety Co., 309 Pa. 236, 163 A. 523.) It therefore is a legal question that is involved, one of burden of proof.
Both the trial court and the appellant were in agreement to the effect that the burden of proving nonpayment was on the defendant, and they rely on the cases of Eaton v. N. Y. Life Ins. Co., 315 Pa. 68, 172 A. 121, and Brandis v. Empire State Life Assur. Soc., 315 Pa. 558, 174 A. 104. In each of these cases the question involved was the payment of the first premium which payments were acknowledged in the insurance contract. In the Eaton case the insured died before a second premium was due and in the Brandis case the several premiums due after the first payment were paid so that the real question considered and decided was the effect of such a receipt for the first premium. There could be no question that in such a situation a prima facie case would be made out by the production of the policy containing the receipt. In fact, the question involved was as to the right of an insurance company to contradict its receipt for the first premium. It was of such a situation that the Supreme Court was speaking when it used the language quoted by the trial court in its charge. So far as we have been able to discover, neither the Supreme Court nor this court has passed upon the question as to whether the burden of proving the nonpayment of premiums due subsequent to the first premium as a general proposition is on the insurer. In Crumpton v. Pittsburg Council, 1 Pa.Super. 613, there was involved a question of the levying of an assessment by the insurer, and this court there held that the burden of proof was on the insurer "to make out its case -- to show that this brother was in arrears for thirteen weeks within four weeks of the time of his death." Undoubtedly, the burden is on a fraternal or beneficial association to show that the assessments claimed to be in arrears were made. However, the general weight of authority in other jurisdictions supports the proposition as stated in Ruling Case Law (14 R. C. L. 1437): "The burden of proving the nonpayment of premiums [on policies of life insurance] is on the insurer." Also, see Hinchliffe v. Minn. Com. Men's Assn., 142 Minn. 204, 171 N.W. 776; Novosel v. Mid West Life Ins. Co., 276 S.W. 87; Petherick v. General Assembly O. A., 114 Mich. 420, 72 N.W. 262; Rousseau v. Brotherhood of Amer. Yeomen, 186 Mich. 101, 152 N.W. 939; Harris v. Sec. Life Ins. Co. of Amer., 248 Mo. 304, 154 S.W. 68; Liensny v. Metro. Life Ins. Co., 131 N.Y.S. 1087, 103 N.E. 1126; Thomas v. N.W. Mut. Life Ins. Co., 142 Cal. 79, 75 P. 665; Globe Mut. Life Ins. Assn. v. March, 118 Ill.App. 261; Elmer v. Mut. Ben. Life Assn. of Amer., 19 N.Y.S. 289, 34 N.E. 512; Fischer v. Ins. Co., 167 N.Y. 178, 60 N.E. 431. There is, however, authority to the contrary: Farrell v. Amer. Emp. Liability Ins. Co., 68 Vt. 136, 34 A. 478. It is also true that in many of the cases where the burden has been placed upon the insurance company there was involved a question of the levying of an assessment by a fraternal or beneficial association, and by the...
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